Introduced Version House Bill 2386 History

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H. B. 2386

(By Delegates Hatfield, Martin and Caputo)
[Introduced February 16, 2005; referred to the
Committee on Health and Human Resources then Government Organization.]

A BILL to amend and reenact §16-5C-2 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §16-5C-5a and §16-5C-5b, all relating to nursing homes; defining certain terms; requiring the posting of staffing data; and providing for the right of family members to form family councils at nursing homes.

Be it enacted by the Legislature of West Virginia:
That §16-5C-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto two new sections, designated §16-5C-5a and §16-5C-5b, all to read as follows:
§16-5C-2. Definitions.
As used in this article, unless a different meaning appears from the context:
(a) "Deficiency" means a nursing home's failure to meet the requirements specified in article five-c, chapter sixteen of this code and rules promulgated thereunder.
(b) "Director" means the Secretary of the Department of Health and Human Resources or his or her designee.
(c) "Household" means a private home or residence which is separate from or unattached to a nursing home.
(d) "Immediate jeopardy" means a situation in which the nursing home's noncompliance with one or more of the provisions of this article or rules promulgated thereunder has caused or is likely to cause serious harm, impairment or death to a resident.
(e) "Nursing home" or "facility" means any institution, residence or place or any part or unit thereof, however named, in this State which is advertised, offered, maintained or operated by the ownership or management, whether for a consideration or not, for the express or implied purpose of providing accommodations and care, for a period of more than twenty-four hours, for four or more persons who are ill or otherwise incapacitated and in need of extensive, ongoing nursing care due to physical or mental impairment or which provides services for the rehabilitation of persons who are convalescing from illness or incapacitation.
The care or treatment in a household, whether for compensation or not, of any person related by blood or marriage, within the degree of consanguinity of second cousin to the head of the household, or his or her spouse, may not be deemed considered to constitute a nursing home within the meaning of this article. Nothing contained in this article applies to nursing homes operated by the federal government; or extended care facilities operated in conjunction with a hospital; or institutions operated for the treatment and care of alcoholic patients; or offices of physicians; or hotels, boarding homes or other similar places that furnish to their guests only room and board; or to homes or asylums operated by fraternal orders pursuant to article three, chapter thirty-five of this code.
(f) "Nursing care" means those procedures commonly employed in providing for the physical, emotional and rehabilitational needs of the ill or otherwise incapacitated which require technical skills and knowledge beyond that which the untrained person possesses, including, but not limited to, such procedures as: Irrigations, catheterization, special procedure contributing to rehabilitation, and administration of medication by any method which involves a level of complexity and skill in administration not possessed by the untrained person.
(g) "Resident" means an individual living in a nursing home.
(h) "Review organization" means any committee or organization engaging in peer review or quality assurance, including, but not limited to, a medical audit committee, a health insurance review committee, a professional health service plan review committee or organization, a dental review committee, a physician's advisory committee, a podiatry advisory committee, a nursing advisory committee, any committee or organization established pursuant to a medical assistance program, any committee or organization established or required under state or federal statutes, rules, or regulations and any committee established by one or more state or local professional societies or institutes, to gather and review information relating to the care and treatment of residents for the purposes of: (1) Evaluating and improving the quality of health care rendered; (2) reducing morbidity or mortality; or (3) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care.
(i) "Sponsor" means the person or agency legally responsible for the welfare and support of a resident.
(j) "Person" means an individual and every form of organization, whether incorporated or unincorporated, including any partnership, corporation, trust, association or political subdivision of the State.
(k) "Substantial compliance" means a level of compliance with the rules such that no deficiencies exist or such that identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.
(l) "Staff directly responsible for care" means either licensed or unlicensed staff assigned direct care responsibilities for a specific resident or residents. This does not include the director of nursing in facilities with more than sixty residents, or other administrative staff who regularly do not have direct care responsibilities unless the facility has identified an emergency situation that has been confirmed by the State's Nursing Home Regulatory Agency.
(m) "Family council" means a meeting of family members, friends or representatives of two or more residents to confer in private without facility staff. A family council has the right to express grievances in relation to the resident's well-being in general and to make recommendations concerning nursing home policies and procedures.
The director may define in the rules any term used herein which is not expressly defined.
§16-5C-5a. Posting staffing data.
(a) A nursing home or facility shall publicly post staffing information in the facility. A form, approved by the Department of Health and Human Resources shall be used to post the information. The form shall require and include the following:
(1) The name and title of each staff present and directly responsible for resident care;
(2) The area, floor and wing of the facility where the staff is assigned;
(3) The number of residents assigned to each staff;
(4) The number of residents currently present in the facility;
(5) The name of the staff completing the information form;
(6) The time and date the form was completed;
(7) The information must be posted each shift;
(8) The form used must be posted in an area that is open to the public and in the case of multiple-floor facilities, on each floor; and
(9) The form must use at least twelve point typeface or it must accommodate the needs of those with limited vision as requested.
(b) A violation of the provisions of this section will constitute a violation of resident rights. The Department of Health and Human Resources shall impose a civil penalty of no more than one thousand dollars, payable to the Department, upon any person who violates the provisions of this section. Each day a violation continues shall constitute a separate violation.
§16-5C-5b. Family council rights.
(a) No licensed skilled nursing facility or intermediate care facility may prohibit the formation of a family council, and when requested by a member of the resident?s family or the resident?s representative, the family council shall be allowed to meet in a common meeting room of the facility at least once a month during mutually agreed upon hours.
(b) The facility shall inform family members upon the admission of a resident of their right to form a family council. The facility may not deny a family council the opportunity to accept assistance from an organization or individual outside of the facility.
(c) Facility policies on family councils may not limit the rights of residents, family members, and family council members to meet independently with outside persons including members of nonprofit or governmental organizations or with facility personnel during nonworking hours.
(d) Family councils shall also be provided adequate space on a prominent bulletin board or other posting area for the display of meeting notices, minutes, newsletters or other information pertaining to the operation of family councils.
(e) The facility may not prevent or interfere with a family council receiving outside correspondence which is addressed to the council. Family council mail shall be delivered unopened to the governing body or contact person of the council.
(f) Staff or visitors may attend family council meetings at the group?s invitation.
(g) If requested by the council, the facility shall provide a designated staff person who shall be responsible for providing assistance to the family, and for responding to written requests that result from family council meetings.
(h) The facility shall consider the views and act upon the grievances and recommendations of the family council concerning proposed policy and operational decisions affecting residents' care and life at the facility.
(i) The facility shall respond in writing to written requests or concerns of a family council within five working days.
(j) When a family council exists, the facility shall provide notice of the family council's existence in at least a quarterly mailing. During the admission process, the facility shall also inform family members or representatives of new residents, who are identified on the admissions agreement or in the resident?s records, of the existence of a family council. The notice shall include the time, place and date of the next scheduled council meeting and the person to contact regarding involvement in the family council.
(k) No facility may willfully interfere with the formation, maintenance or promotion of a family council. The willful interference with a family council includes, but is not limited to, discrimination or retaliation in any way against an individual as a result of his or her participation in a family council or the willful scheduling of facility events that conflict with previously scheduled family council meetings.
(1) A violation of the provisions of this section constitutes a violation of resident rights. The Department of Health and Human Resources shall impose a civil penalty of no more than one thousand dollars payable to the Department, upon any person who violates the provisions of this section. Each day a violation continues shall constitute a separate violation.

NOTE: The purpose of the bill is require nursing homes to publicly post staffing information and to, additionally, grant certain rights to family councils. It requires nursing homes to post, each shift, the names of licensed and unlicensed staff with direct care responsibilities. It establishes the type of information to be provided and the manner in which it must be posted. The bill grants privacy and organizational rights to family councils and requires nursing homes to respond to a council's concerns and questions regarding facility administrative decisions which affect the lives of residents in the facility. The bill also sets forth resident?s rights violations while including civil penalties for noncompliance.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

Sections 5a and 5b are new; therefore, strike-throughs and underscoring have been omitted.
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